Justinian Lane

A Balanced Look at Medical Malpractice Litigation

I just saw this balanced look at medmal litigation and wanted to post it here.  A couple things that jumped out at me that aren't in the quote: Again, repeating the statistic that medical malpractice costs are less than 2% of all healthcare spending.  I've yet to see this refuted, and last I heard, this stat came from the federal government.  Also, one of the writers notes that, "There are no longer any family medicine doctors delivering babies in Austin, Texas."  Was the passage of tort "reform" supposed to cure that, or is it just the norm now?

America's medical malpractice system is one part Rip van Winkle and one part Anna Nicole Smith.

It's Rip van Winkle because malpractice policy usually lies dormant for a decade or more until it hears the clamor of a liability insurance crisis. Once awakened, moreover, it typically acts as if the health care system has not changed since its prior revival. Why Anna Nichole Smith? Because malpractice liability is a train wreck that Americans can't help watching. Once captivated, the public imbues malpractice with importance to the U.S. health care system far beyond that indicated by objective criteria. The Jury's Still Out: A Critical Look at Malpractice Reform

As always, comments and discussion are welcome.

Justinian Lane: Author Bio | Other Posts
Posted at 1:15 PM, Jun 12, 2008 in Medical Malpractice
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It is 2% if you exclude all the negative MRI's, CTs and other tests that are ordered to be sure you don't get hit with a 1 in a million occurence and a lawsuit. If you look at the fastest growing areas of profit in medical care, the answer is in testing. The reason you have not seen the number refuted is that you dont work in the ER and see what is really going on and only look at sources that refuse to consider the downstream effect of litigation. The new protocol for headaches that come in to the ER is straight to scan. The protocol for belly pain is straight to scan. The good news is that all the scans are causing cancer that leads to more operations and guess what, more scans.

Posted by: THROCKMORTON | June 12, 2008 4:38 PM


Really? Do you work in an ER? Are you telling us you work in an ER and doctors are unnecessarily causing patients exposure to testing that can cause cancer to protect themeselves from medical malpractice? Somehow, I doubt it because I think 98% of a doctors don't give malpractice a second thought - they focus on what is best for their patients.

Posted by: Ron Miller | June 12, 2008 4:47 PM

In response to family doctors delivering babies. This was once the norm, of course lawsuits were cerbral palsy is blamed on the delivery meant that no same family doc would consider delivering babies. For the same reason, family docs have stopped doing most procedures and refer care of many more things to specialists. The story of the attorney asking "why doctor did you not refer Ms. X to a specialist" is part of the new medical dogma and as a result everything tends to be referred. It is not that the primary care docs can not take care of it, rather, why would they risk it? Tort reform helps but it is going to take a lot before we see primary care docs expand their practice. A very interesting thing is the role of the "doc in the box" clinics that are in fact staffed by independent RNPs and PAs. These providers do not have the same med mal insurance and so far have not been the targets of the same litigation. The question is why? They take care of very little, refer as much out. By not having to carry as much malpractice insurance or bond, there is no money in suing them. To have the opinion that medical malpractice costs are only 2% is to be blind to the economics of medicine and the legal profession.

Posted by: throckmorton | June 12, 2008 4:55 PM

Mr. Miller:

I don't know of any doctor who does not worry of a frivolous lawsuit. They are a part of medicine. We have lost the evidence based approach to medicine. Headaches are a classic example. A patient comes to the ER with a horrible frontal headache. With exam and history you can be sure to 98% that this is a tension headache and or migraine. The 2% that are left can be many things some of which are horrible. Once we would watch them in the ER and try several medications to help them get better. How they responded helped make the diagnosis. The new mentality is that each patient with a headache has a bleed of stroke until proven otherwise, hence the scan. Instead of using diagnosic skill we go straight to looking to the less likely condition. If we used evidence based protocols we would follow the patient and go to scan when we felt all signs are leading to a bleed instead of right away. Now we get the scan right away. Is it what is best for the patient? That is the debate. It is best for the patient if you find something. If it is negative you have just given the patient more rads for cancer and of course it is not best for the patient. So where is the magic bar? At what standard deviation from the meadnis it appropriate to get the scan? You only need to miss one in a million for a patent to have a bad outcome and frivoulous lawsuit. To catch that one in a million you have to order a million scans.

Posted by: throckmorton | June 12, 2008 5:10 PM

The C-section rate has gone from 6% to 31%, at tremendous additional medical expense plus additional risk of death or injury to the mother, without any change in the birth-defect or cerebral-palsy rate. While some of that is because of scheduling-for-convenience and upselling by hospitals, the vast majority of the increase is defensive medicine to avoid risk of lawsuits, and neither the increased expense, nor the increased human cost, is part of the "2%" figure.

The CAP study is good in places but the "bottom line" gets several facts wrong, and doesn't always fairly present reformers' arguments.

Posted by: Ted | June 12, 2008 7:19 PM

Ron: Let's say, this lying lawyer propaganda is correct, and 2% of the health budget goes to medmal.

In the case of the medmal plaintiff, 75% of claims are weak. These fail at every stage of litigation from first pleading to appeal. The filing of a weak case is legal malpractice.

Will you or will you not support ending the privity obstacle to legal malpractice claim by the adverse third party? To deter, to improve the product of the plaintiff bar.

If you will not support ending this obstacle, shut your dirtbag plaintiff mouth, you lying hypocrite.

Posted by: Supremacy Claus | June 12, 2008 8:41 PM

Throckmorton: Setting aside the reasons why is is this way, is it a "good" thing for the patient that specialists handle the deliveries now? I'm not a doctor (obviously) but to me it doesn't sound like a really bad situation that specialists are performing what is still a somewhat risky procedure. I mean, the more they do, the better at it they'll be, right?

Ted, two questions: First, are there any studies that do include the purported costs of defensive medicine and come up with a different percentage? And second, what percentage do you think liability costs should be of the whole?

Posted by: Justinian Lane | June 12, 2008 9:12 PM

Justinian: For the hundredth time, same question. You refuse to answer.

Kia is the sole lawyer outside the leadership of the ALI and the professional responsibility experts, willing to support the end of the self-dealt immunities of the criminal cult enterprise.

Posted by: Supremacy Claus | June 12, 2008 9:51 PM

Ron and Justinian: I will accept any number you select.

But let's say, you have filed 100 medmal cases and collected on 25. Don't those 75 weak cases represent scienter? And after failing at so many, shouldn't you be upgrading the quality of the claims in the future?

And if you do not, don't the subsequent claims qualify for gross negligence or intentionality, thus malice? If the numbers are so big, don't they justify exemplary damages?

If the entire medmal plaintiff bar has the same track record, are they not subject to such exemplary damages as a class?

If these statistics are published, and are sustained for decades, hasn't the medmal defense bar, as a class, failed in its fiduciary responsibility to seek a remedy by an injunction, by a policy of filing ethics complaints, and by initiating the class action lawsuit against the plaintiff bar?

If the defense bar does not initiate such a remedy, can't one point to rent seeking as the self-dealing reason? If it deters the weak claim, the defense bar loses easy and lucrative business obtained at the point of a gun pointed at its clients. Isn't such self-dealing a betrayal of the client justifying an ass kicking, and not just a lawsuit against the entire defense bar?

If the disciplinary counsel and the local judges have seen these public statistics, aren't they just as liable to the doctors of the area for their failures of duty, with scienter, and with malice, subject to exemplary damages?

Posted by: Supremacy Claus | June 13, 2008 6:40 AM


It doesn't matter how many you do and how good you get at them, what is important is if you needed to do it in the first place. Oerative complications are real and can occur at any time. You avoid operative complications by avoiding unnecessary operations.

Posted by: throckmorton | June 13, 2008 7:30 AM

1) Should the medmal defendant be able to get the record of success of the plaintiff attorney? Why is that not relevant?

2) If it shows 100 claims, and 25 collections on such, shouldn't there be a presumption of frivolousness? Shouldn't the burden of proof then increase? Shouldn't the judge demand the plaintiff overcome this presumption before the case goes forth?

3) If all these cases had a certificate of merit from experts, shouldn't the experts in the losing cases be barred from writing certificates in the future? If they are not barred, shouldn't their track record end the presumption of validity inherent in the certificate?

4) Shouldn't all parties be liable to sanctions, including judges, if the outcome favors the defendant?

5) The burden is preponderance, 51% chance of being right. The track record is 25% chance of being right for the plaintiff lawyer. What is the chance the next case will be right? Not a rhetorical question.

Posted by: Supremacy Claus | June 13, 2008 7:31 AM

Throckmorton, I wasn't referring to C-sections, but to deliveries being performed by specialists. Obviously, all deliveries have to be done - are there negative implications if specialists do them all?

Posted by: Justinian Lane | June 13, 2008 10:16 AM

Traditionally your family doctor who new you the best cared for all your medical health issues would perform deliveries while there was an OB on back up if a c-section was necessary. As the OBs became the target of suits over CP (which the rate is the same in the US as it is in other countries), their malpractice went through the roof. They have to pass this on to their patients. Family doctors decided to avoid the risk of med mal and stop deliveries. So what is best for the patient? Being able to deliver the baby in your own community when labor starts or have to travel many miles to another hospital? Since there is a good chance that the child will not wait to get to the other hospital the answer becomes "sceduled induction and or C-sect" with the resultant increase in risk. This is part of why our C-section rate is over 30% and approaches 60% in some areas. As an OB frined of mine said, I never gets sued because I didn't do a c-section!

The impact on the cost of healthcare is beyond this. Rather than have care performed at the first level, care is now sent to multiple levels resulting in increased cost. Your family doctor can handle your hypertension, diabetes and triglycerides while working on your osteoarthritis. From a legal standpoint it is better for him or her to send you to specialists who each charge you and your insurnace. The end result is that you and our society pays more and more for healthcare.

Our society has to determine what is the standard of care.

Oh, by the way, why is it that people sue OBs but when the lay midwife has a complication there is no suit?

Posted by: throckmorton | June 13, 2008 11:21 AM

What is the ratio of malpractice to lawsuits? We know that the Institute of Medicine says up to 98,000 cases of malpractice occur each year and Health Grades places that number at about twice that. I have never seen the total number of malpractice lawsuits filed each year but it has to be significantly lower.

The only state I know that tracks the data is Pennsylvania. The report from last year shows hospitals (hospitals are not all sources of malpractice) reported over 200,000 incidents of errors and of these over 7,000 were considered serious events causing great harm or death. In the years of tracking both incidents and serious events are up every year. In contrast the Pa. Supreme Court tracks malpractice lawsuits and in each year the number has dropped. For the last year it was down to just over 1600. Most of the counties reported no plaintiff's verdicts or lawsuits.

Any way you look at it if hospitals are reporting over 7000 mistakes leading to serious harm and only 1600 lawsuits are being filed the problem is not the lawsuits. The fact that most verdicts are in favor of the health care provider does not mean the cases tha lose are weak. It shows that juries don't favor or sympathize with the victims of malpractice, even when it occurs.

Do you think that the same group of skilled lawyers that regulalrly win over 50% of auto or product liability or other complex cases suddenly become more incompetent when facing cowering doctors who are so intimidated by the legal system?

If you want openness then lets open up peer review. Lets open up doctor discipline and let the patients make informed decisions.

If you complain about the high cost of unnecessary tests please tell us how many of these tests result in discovery of the suspected or even an unknown problem. If none of them do then you have a strong case for setting the standard as not to do the test. If they do discover problems then deduct the cost of the test and the cost of what is saved by correct or early detection from what you want to add to the 2% figure.

Posted by: Different 1 | June 13, 2008 11:34 AM

Guys this is useless. For those of you who think that the standard of care will improve as long as there is more litigation, then you're a quack. To err is human, and doctors are no different. As litigation increases you'll start seeing less care available. It is a shame because there aren't enough doctors as it is.

In the meantime if someone would start suing lawyers for frivolous litigation, then maybe we would have so many of you.

Posted by: Adam | June 13, 2008 1:36 PM

Adam, so is the solution to just get rid of medmal cases entirely and just throw injured patients to the wolves?

Posted by: Justinian Lane | June 13, 2008 2:08 PM

Adam says, "In the meantime if someone would start suing lawyers for frivolous litigation, then maybe we would have so many of you."

This principle is self-evident and just. Almost anyone with some sense of fairness agrees, with it, not just ALI elites, or professional responsibility experts. Yet, the rigging is airtight of the self-dealt immunities of the criminal cult enterprise that is the lawyer profession. It is so airtight that it defeats one aim of torts, to substitute for violent self-help. It fully justifies self-help. I have proposed a non-violent boycott of the hierarchy, the judges. No product or service provider serves any judge. Shun them. Let them repair their own heating systems in the middle of winter. To deter.

Posted by: Anonymous | June 13, 2008 2:38 PM

Diff: A losing case may not be a weak case However, a 75% rate of losing means most cases are weak. Why not let lawyering experts express their opinions in the legal malpractice case, and let the jury decide? Why are lawyers above the law, in violation of the procedural due process rights of the civil defendant? None of the lawyers here wants to address that question. They are lying, misleading hypocrites.

Posted by: Supremacy Claus | June 13, 2008 2:44 PM

Stop going to extremes. The idea is that with the threat of costly litigation constantly in the air for all mistakes great or small, you'll find medical costs going through the roof. Doctors working you up for minor injuries. They fear being sued by irrational patients. Doctors can and will make mistakes that should open the door for litigation. When those mistakes take on the form of gross negligence, then we'll talk. It's not that litigation is bad, it is the volume and the cost especially when you consider the frivolous.

I sprained my ankle 2 weeks ago and I was nearly scheduled for an MRI. I had to tell the doctor that that wouldn't be necessary unless my injury felt worse after a week or two. He mentioned that with the current state of medicine, it is now standard to check for everything and thanked me for understanding. 2 weeks later, I'm walking around fine without a large MRI bill in my mailbox. (sorry not all of us made 200K a year during the dotcom boom.)

Lastly, trying to prove your point by going to the most outrageous of ideas is exactly what I expected from a lawyer like you.

Posted by: Adam | June 13, 2008 2:50 PM

I'm not trying to go to extremes, I'm trying to figure out what your position is. Is it that litigation is only appropriate in cases of gross malpractice?

It's also possible your doctor is part owner of an MRI clinic and gets a cut when he makes unnecessary referrals. I just don't understand why people don't see the conflict of interest that doctors have to order unnecessary procedures. People accuse lawyers of filing unnecessary motions just to make a buck, so why assume that doctors don't sometimes do the same?

And yeah, I made a lot of money in the 1990's, but right now, it's a different story. I'm a law student living on student loans who couldn't afford to see a doctor if I sprained my ankle. You should see the hellacious scar on my arm because I couldn't afford to get stitches after my fan blade tore my arm open. That happened back in February and as luck would have it, part of it just popped open and started bleeding again this very minute.

If I hurt my ankle, I'd end up having to buy a cane because medical treatment is too expensive. And let's not blame that on the tort system; if we eliminated all medical malpractice litigation, what's the most that we'd save? 10%? 20%? Even 30% wouldn't make the cost of a broken ankle affordable to people living on minimum wage.

Posted by: Justinian Lane | June 13, 2008 3:56 PM

The elimination of defensive medicine could pay for top of the line coverage for 10 million families. The control of the lawyer profession could boost the economic growth from its anemic 3% of today to 9%. We could spend the money wasted on these paper shufflers on research and development up to a whopping 20% of the GDP. We would be so advanced, no nation could even understand what we were doing here.

The law is an utility product. I would like to see it regulated like a nuclear plant. Prove its necessity, its safety, its environmental impact, physical and economic. Shut down all Top Tier schools as indoctrination camps for America haters. Cut the lawyer supply in half, along with all their rent seeking pretextual regulations and false laws, all ghoulish experimentation.

Posted by: Supremacy Claus | June 13, 2008 5:03 PM

Justinian is mistaken. If he broke his ankle, he would call an ambulance, get taken to the local ER. Federal thugs have forced the ER to take him in, and to do all defensive medicine procedures, costing around $10,000. This bloodsucker would not pay a dime because his ilk have forced the ER slaves to pass on all costs to the productive people of the area. The cult criminal thugs at the Federal government would show up with weapons to enforce their enslavement of medical people. Then this bloodsucker gets a second shot. If anything goes wrong, he gets to make a $million off the bogus, frivolous medmal case.

I have proposed shunning and boycotting the cult criminals that have taken over the three branches of government. Come the next major attack by their good friends the terrorists, all get rounded up. Their hierarchy gets brief show trials, and hangs outside the courthouse To deter.

Posted by: Supremacy Claus | June 13, 2008 6:46 PM

Wow! I had no idea that if I'm turned away from a hospital all I need to do is call the SWAT Team in on them. I'll remember that!

Posted by: Justinian Lane | June 13, 2008 8:57 PM

CMS will ban the hospital in 23 days, after jack booted FBI thugs, all lawyers back up trucks, rough up the female staff and take away the records.

There is no recourse against these cult criminals, except in self-help. Name them, shun them, let them live in the 13th Century from whence they came.

Posted by: Supremacy Claus | June 13, 2008 9:26 PM

Nice to see a balanced discussion LOFL!

Criminal cult conspiracies, no discussion of constitutional rights or god-given rights. Kill all the lawyers...yada yada yada. Sad really. I hope the homicidal tendencies are kept in check and that Supremacy is as impotent as his posts suggest.

Supremacy Claus = Impotent rage.

It does provide some free entertainment and good belly laughs however!

Posted by: Steve | June 16, 2008 1:06 PM